Gujarat High Court
Central Bureau Of Investigation vs Jay Karan Singh-Joint Director on 7 May, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.MA/23089/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23089 of 2017
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CENTRAL BUREAU OF INVESTIGATION
Versus
JAY KARAN SINGH-JOINT DIRECTOR AND OTHERS
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Appearance:
MR RC KODEKAR(1395) for the PETITIONER(s) No. 1
MR CJ VIN(978) for the RESPONDENT(s) No. 2
MR D C SEJPAL(1322) for the RESPONDENT(s) No. 1
MR LR PUJARI, ADDL. PUBLIC PROSECUTOR(2) for the RESPONDENT(s)
No. 3
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 07/05/2018
ORAL ORDER
1. The application is made for condonation of delay of 331 days in preferring leave for the purpose of appeal against judgment and order dated 30.12.2006 passed by the learned Special Judge, CBI Court No.5, Ahmedabad in Special Case No. 14 of 2006.
2. In the additional affidavit filed by the applicant the consumption of time for moving the file from one table to another and one department to another has been pointed out and the submission is that delay has been sufficiently explained. The machinery involved in the process were the Public Prosecutor, Deputy Inspector General of Police (CBI), Gandhinagar, Deputy Legal Adviser, CBI Mumbai Zone, Mumbai, Joint Director, CBI Mumbai Zone, Mumbai, Additional Director, CBI, New Delhi, Director of Prosecution Page 1 of 6 R/CR.MA/23089/2017 ORDER and again the file is said to have reverted therefrom and eventually appeal is sought to be filed with the above-stated delay.
3. For opposing the application, learned counsel for the respondent would rely upon Post Master General and others v. Living Media India Limited and another [(2012) 3 SCC 563] more particularly para 29 and 30 which reads as under:
"In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
The learned counsel would contend that, except for departmental movement of the file, no explanation pointing out why the file waited in each of the department for the specified periods after expiry of the period of limitation.
4. As against that, learned counsel Mr. Kodekar has submitted that merits is one of the consideration for Page 2 of 6 R/CR.MA/23089/2017 ORDER condonation of delay. Learned counsel invited attention of this court to Tax Appeal No. 1154 of 2013 decided on 22.4.2014 Commissioner of Income Tax II v. Gruh Finance Limited, and would contend that therein after consideration of the Post Master General case (supra), the court considered various other pronouncements and condoned the delay.
5. In the above-referred Tax Appeal, Post Master General (supra) was considered in para 9 and the court also considered in para 10 Commissioner of Income Tax v. West Bengal Infrastructure Development Finance Corporation Limited [(2011) 334 ITR 269 (SC)] more particularly para 5 which reads thus:
"Looking to the amount of tax involved in this case, we are of the view that the High Court ought to have decided the matter on the merits. In all such cases where there is delay on the part of the Department, we request the High Court to consider imposing costs but certainly it should examine the cases on the merits and should not dispose of cases merely on the ground of delay, particularly when huge stakes are involved."
6. Reference was also made to State of Nagaland v. Lipok AO and others [(2005) 3 SCC 752], the observations were made in para 13, 14 and 15 thus:
"13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on- the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non- grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning Page 3 of 6 R/CR.MA/23089/2017 ORDER down the case on technicalities of delay in presenting the appeal. Delay as accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Parkash Kalra (1987 Supp SCC 339), this Court had held that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.
14. In G. Ramegowda v. Spl. Land Acquisition Officer [(1988) 2 SCC 142], it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red- tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints". Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair Page 4 of 6 R/CR.MA/23089/2017 ORDER and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned.
15. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay
- intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice- oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."
7. Reverting back to the facts of the present case, it is noticed that the accusation against the respondent of demanding Rs.53.00 lakhs is quite serious. It is prima facie noticed from the impugned judgment and order that though Page 5 of 6 R/CR.MA/23089/2017 ORDER the witnesses have clearly stated that a sum of Rs.2.50 per sq.mtr was demanded by accused, the court has misinterpreted the testimony and has concluded that there was no demand. The case thus requires close consideration on merits and cannot be thrown out at the threshold on the mere ground of delay.
8. In the result, the application succeeds. Delay of 331 days in preferring leave to appeal under Section 378 of Cr.P.C. is condoned. Rule is made absolute.
It is clarified that the observations made in this order are limited to this application only.
(G.R.UDHWANI, J) syed/ Page 6 of 6